Roman Shortall

Does the Constitution permit judicial review to be vested in a court of local and limited jurisdiction that lacks competence to determine the validity of laws?

The Civil Reform Bill 2025 proposes to assign specified categories of judicial review to the Circuit Court, subject to a limited gateway to the High Court. Professor Paul Daly has identified this as a fundamental shift away from the High Court’s constitutionally protected role. Two specific constitutional difficulties arise.

Local and limited jurisdiction

“Local and limited” is not surplus language but a deliberate restriction. As Clarke CJ noted in Permanent TSB v Langan, “a real meaning must be given” to the requirement that the Circuit Court’s jurisdiction is limited; it is a constitutional constraint, not a matter of legislative indulgence.

Judicial review is not ordinary litigation; it is the supervisory mechanism by which executive power is scrutinised and constitutional law enforced. Without it, the State acts with impunity. Historically and doctrinally, it’s an incident of the High Court’s jurisdiction under Article 34: national in scope, constitutional in character, and not territorially bounded.

That point has sharpened following January’s Supreme Court decision in M v M, where Collins J, citing Clarke CJ in Permanent TSB v Langan, reaffirmed that “the Circuit Court cannot become a surrogate court of full jurisdiction”, an observation directed to the constitutional character of the superior courts and the limits of statutory assignment.

A jurisdiction required by the Constitution to be “local and limited” arguably cannot, consistently with that description, be vested with a supervisory function whose defining characteristic is the absence of territorial limitation.

Those concerns are compounded by the Dublin Circuit Court’s proposed designation as a sole venue for certain classes of judicial review. This would centralise a court defined by locality into a national forum for public-law litigation, including cases with no territorial nexus to the capital.

By contrast, Section 194 of the Gambling Regulation Act 2024 anchors venue to the Circuit of residence or business, with Dublin operating only as a default where the licensee is based outside the State, thereby preserving territorial reference. Head 9 contains no equivalent provision.

Hogan J, citing Casey, observed in M v M that the Circuit Court’s geographically bounded jurisdiction “may not be erected into a localised replica of the High Court”.

The State will likely rely on the majority judgment of Dunne J in M v M, in which she rejected the proposition that the Circuit Court’s “local and limited” jurisdiction precluded an Isaac Wunder order made in one Circuit from having legal effect in another – but that reliance would be misplaced.

An Isaac Wunder order operates incidentally; judicial review is constitutive. Assigning the latter wholesale would alter, not merely regulate, the Circuit Court’s constitutional function.

The State may further argue that M v M confirms a degree of functional flexibility: that “local and limited” does not require strict territorial confinement, and that incidental cross-boundary consequences do not offend the constitutional description. It may be argued that judicial review, as restructured by statute, would remain subject to appeal to the High Court and ultimately the Supreme Court, thereby preserving the supervisory role of the superior courts. That argument proves too much. Preserving appeal rights does not answer the jurisdictional objection at first instance.

Determining the validity of laws

More than one jurisdictional question arises under the Bill.

Head 9(5) purports to oust the High Court’s supervision of the Circuit Court by precluding judicial review of a refusal of leave. The proposal is difficult to reconcile with what Simons J described in M v M as the High Court’s “supervisory jurisdiction over the Circuit Court, by way of judicial review”. It is, on its face, unconstitutional.

More fundamentally, Head 9 conflicts with Article 34.3.2 of the Constitution, which confers exclusive jurisdiction on the High Court and appellate courts to determine the validity of a law.

The head is framed in mandatory terms: specified classes of judicial review “shall be initiated” and “heard” in the Circuit Court, subject only to a discretionary gateway to the High Court based on “exceptional public importance” and the public interest.

Head 9 would require a constitutional challenge to the validity of a law underpinning a District Court conviction to be determined, on judicial review, by the Circuit Court. The Circuit Court has no jurisdiction to do so. This is not a hypothetical edge case. It has arisen in the High Court.

The Department’s response to a query from this author – that constitutional challenges may simply be brought under Article 34.3.2 – ignores the procedural trap Head 9 creates, and is inconsistent with established carve-outs such as Section 287 of the Planning and Development Act 2024.

The difficulty lies not in the absence of a restatement but in the presence of a statutory command to initiate proceedings in a court that plainly lacks jurisdiction to determine a central issue. Saying the Constitution will “override” the statute does not resolve the conflict; it merely restates it.

Is a constitutional validity challenge excluded from “judicial review proceedings” for the purposes of Head 9, or must proceedings be initiated in the Circuit Court even where it cannot determine all pleaded grounds? The provision is silent.

The “exceptional public importance” gateway cannot resolve the friction. Where legislative validity is engaged, Article 34.3.2 does not permit a discretionary barrier to the High Court. Exclusivity is not satisfied by sequence.

A court might read Head 9 subject to Article 34.3.2 – construing constitutional validity challenges as outside “judicial review proceedings”, or disapplying the mandatory initiation requirement where such issues are pleaded. That reading-down would substantially rewrite the provision and introduce uncertainty at the point of issue.

If the Circuit Court is constitutionally incapable of exercising judicial review in its full sense, Head 9 merely exposes that incompatibility. Head 9 requires, at minimum, a clear and automatic mechanism ensuring High Court jurisdiction wherever Article 34.3.2 is engaged. Without it, the provision will not survive constitutional challenge.

Roman Shortall is principal at Shortall Law.